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Tarr, G. Alan --- "Federalism and Subnational Legal Systems: The Canadian Example of Provincial Constitutionalism" [2012] ELECD 766; in Clark, S. David (ed), "Comparative Law and Society" (Edward Elgar Publishing, 2012)

Book Title: Comparative Law and Society

Editor(s): Clark, S. David

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849803618

Section: Chapter 9

Section Title: Federalism and Subnational Legal Systems: The Canadian Example of Provincial Constitutionalism

Author(s): Tarr, G. Alan

Number of pages: 18

Extract:

9 Federalism and subnational legal systems: the
Canadian example of provincial constitutionalism
G. Alan Tarr*


1 INTRODUCTION

Scholars have long recognized that studying the constitutional architecture of other
countries enhances one's understanding of one's own constitutional arrangements
by making the familiar and seemingly obvious problematic and contingent. As Kim
Scheppele put it: `One reason [for studying comparative constitutionalism] is that many
of the taken-for-granted fixed starting points of our field are actually variables connected
to time and space, variables whose variable quality is obscured if we do not know the
counterexamples.'1 With this in mind, this chapter analyzes provincial constitutionalism
in Canada in light of American state constitutions and, to a lesser extent, the subnational
constitutions of other federal systems. Such a study is valuable substantively, as previous
research on Canadian constitutionalism has largely ignored provincial constitutions.2 In
addition, looking at Canadian provincial constitutions from a comparative perspective
highlights what is common and what distinctive in subnational constitutions in various
federal systems. Finally, by examining Canadian provincial constitutionalism compara-
tively, this study reveals what these diverse experiences suggest about the role that sub-
national constitutions play in governance and in guaranteeing rights.
This chapter pays particular attention to developments in Quebec, because the relation
between provincial constitutions and rights has been a topic of more than scholarly interest
in that province. The idea of a separate, entrenched Quebec constitution has periodically



* Director of the Center for State Constitutional Studies and Distinguished Professor of
Political ...